1. By an application dated 14 February 2011, Femi Falana, Esq. (hereinafter referred to as "the Applicant"), a Nigerian national, who describes himself as a human rights lawyer based in Lagos, Nigeria, seized the Court with an application against the African Union (hereinafter referred to as "the Respondent").

2. In his Application, the Applicant alleges that he has made several attempts to get the Federal Republic of Nigeria (hereinafter referred to as “Nigeria”) to deposit the declaration required under Article 34 (6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) to no avail. He alleges further, that he has been denied access to the Court because of the failure or refusal of Nigeria to make the declaration to accept the competence of the Court in line with Article 34 (6) of the Protocol.

3. He submits in his Application that, since his efforts to have Nigeria make the declaration have failed, he decided to file an application against the Respondent, as a representative of its, then, 53 Member States (now 54), asking the Court to find Article 34 (6) of the Protocol as inconsistent with Article 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights (hereinafter referred to as “the Charter”) as, according to him, the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations (hereinafter referred to as “NGOs”) is a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard.

4. The Application was received at the Registry of the Court on 20 February 2011.

5. By a letter dated 18 March 2011, the Registrar acknowledged receipt of the Application.

6. At its 20^th Ordinary Session held from 14 to 25 March 2011, in Arusha, Tanzania, the Court decided that the Application should be served on the Respondent. The Court also decided that the notifications required under Rule 35 of the Rules of Court (hereinafter referred to as “the Rules”) should be sent.

7. In accordance with Rule 35(2)(a) of the Rules, and by a letter dated 28 March 2011 to the Chairperson of the African Union Commission, the Registrar served a copy of the Application on the Respondent by registered post. The Respondent was advised to communicate the names and addresses of its representatives within thirty (30) days and to respond to the Application within sixty (60) days.

8. In accordance with Rule 35(3) of the Rules, and by a letter, also dated, 28 March 2011, the Application was notified to the Executive Council of the African Union and State Parties to the Protocol, through the Chairperson of the African Union Commission.

9. By a letter dated 29 April 2011, the Respondent acknowledged receipt of the Application and by a notice of the same date, communicated its representative as being the Legal Counsel of the African Union Commission. The Respondent also filed its response dated 29 April 2011. These documents were received at the Registry of the Court on 18 May 2011 and were sent to the Applicant by a letter of the same date.

10. During its 21^st Ordinary Session held from 6 to 17 June 2011, in Arusha, Tanzania, the Court decided that the Applicant should be notified that he could reply to the Respondent's response within thirty (30) days, commencing 8 June 2011.

11. By a letter dated 15 June 2011, the Registrar notified the Applicant of the Court’s decision that he could reply to the Respondent’s response. The Applicant's undated, but signed reply to the Respondent’s response was received at the Registry of the Court on 23 June 2011.

12. By a letter dated 24 June 2011, the Registrar sent to the Respondent, the Applicant’s reply to the Respondent's response, and therein it was indicated that pleadings had been closed and the Parties would be advised of the dates set down for hearing. This letter was copied to the Applicant.

13. By separate letters, both dated 20 October 2011, the Registrar informed the Parties that, at its 22^nd Ordinary Session held from 12 to 23 September 2011, in Arusha, Tanzania, the Court decided that the Parties should be invited to a hearing of the Application during its 23^rd Ordinary Session to be held from 5 to 16 December 2011. In the said letters, the Registrar informed the Parties that the proposed dates for the hearing were 12 to 13 December 2011 and requested them to confirm their availability for these dates not later than 4 November, 2011.

14. By an email dated 21 October 2011, the Applicant confirmed his availability for the public hearing on the proposed dates.

15. By a letter dated 11 November 2011, The Legal Counsel of the African Union Commission informed the Registry of the Court that the Respondent “could not confirm [its] availability due to intervening circumstances and prior commitments”. In the said letter, the Legal Counsel of the African Union Commission further requested that “the hearing of the above matter be postponed/adjourned.”

16. By separate letters, both dated 8 December 2011, the Registrar informed the Parties of the Court’s decision that, due to the unavailability of the Respondent, the public hearing on the Application would take place from 22 to 23 March, during the 24^th Ordinary Session of the Court to be held from 19 to 30 March 2012, in Arusha, Tanzania, even if only one party were to be present.

17. By an email of 7 February 2012, the Office of the Legal Counsel of the African Union Commission informed the Registry of the Court that, at the hearing, the Respondent would be represented by Advocate Bahame Mukirya Tom NYANDUGA, and the latter would be assisted by officers from the Office of the Legal Counsel of the African Union Commission.

18. By an email dated 18 February 2012, the Applicant confirmed his availability for the public hearing on the dates proposed.

19. By a letter dated 19 March 2012, the Registry received a formal letter from the Office of the Legal Counsel appointing Mr. Bahame Mukirya Tom NYANDUGA "to assist the Office of the Legal Counsel of the Respondent in this matter".

20. The public hearing on the Application took place from 22 to 23 March 2012, in Arusha, Tanzania, at which the Court heard the oral arguments and replies:

For the Applicant: Femi FALANA, Esq.
For the Respondent: (i) Advocate Bahame Mukirya Tom
NYANDUGA

(ii) Mr Bright MANDO, Legal Officer in the Office of The Legal Counsel of the AU Commission

21. At the hearing, questions were put by Members of the Court to the Parties, to which replies were given.

22. After deliberations, the Registry received additional submissions from the Applicant, dated 27 March 2012, in which he indicated that they were submitted in accordance with Rule 47 of the Rules. The Court decided that the submissions were not acceptable as the request was not competent in terms of the Rules, and the Registrar was instructed to communicate this decision to the Parties accordingly.

23. By a letter dated 24 April 2012 the Registrar informed the parties of the Court's decision.

24. The Applicant starts by noting that by virtue of Article 34(6) of the Protocol enacted by the Respondent, a State Party is required to make a declaration to accept the competence of the Court to hear and determine human rights cases filed by individuals and NG0s.

25. With regard to the jurisdiction of the Court, the Applicant submits that, in the present case, it has not been ousted, because the Respondent is not "a Member State of the African Union." The Applicant maintains that it is the Respondent which enacted and adopted the Charter and the Protocol, and that the Respondent has been sued as a corporate community on behalf of its Member States. He adds that it is clear that the African Union as a whole is representing the African people and their governments, and, therefore, it is competent to defend actions brought against the Member States.

26. The Applicant further argues that the ouster of a Court's jurisdiction can only arise if the Court is satisfied by evidence adduced before it, that the right sought to be enforced has been extinguished.

27. The Applicant also contends that it is trite law that a Court has the jurisdiction to determine whether its jurisdiction has been ousted. He points out that the competence of this Court to determine its jurisdiction is guaranteed in Article 3(2) of the Protocol which states that "in the event of a dispute as to whether the Court has jurisdiction, the Court shall decide."

28. The Applicant submits finally that, since Article 34(6) of the Protocol does not require the Respondent or any of its institutions to make a declaration to accept the jurisdiction of the Court, the Court is competent to entertain the Application.

29. With regard to the admissibility of the Application, the Applicant asserts that the requirement of exhaustion of local remedies is not applicable in this case since the Respondent cannot be sued in the municipal courts of its Member States. He further submits that the domestication by Nigeria of the Charter and the Constitutive Act of the African Union should be construed as giving him direct access to the Court.

30. With regard to his locus standi, the Applicant argues that he has standing in public interest litigation since he has a duty to promote public interest litigation in the area of human rights, based on Article 27 (1) of the Charter, which provides that every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community, andArticle 29 (7) of the Charter which provides that the individual shall have the duty to preserve and strengthen positive African cultural values.

31. The Applicant also states that, being a senior lawyer and a civil rights lawyer in his country, he has clients who would like to approach the Court but he is unable to discharge his duties to them because of the requirement of Article 34(6) of the Protocol.

32. The Applicant finally submits that he therefore has locus standi to file this Application.

33. With regard to the merits of the case, the Applicant maintains that Article 34(6) of the Protocol is inconsistent with Article 1, 2, 7, 13, 26 and 66 of the Charter.

34. Concerning the alleged violation of Article 1 of the Charter (the obligation for State Parties to recognize the rights, duties and freedoms enshrined in the Charter and to adopt legislative or other measures to give effect to them), the Applicant argues that it is undoubtedly clear that Article 34(6) of the Protocol has derogated from Article 1 of the Charter.

35. Regarding the alleged violation of Article 2 of the Charter (the right to freedom from discrimination), the Applicant contends that, unlike nationals of States that have made the declaration, he cannot drag his country to the African Court on account of human rights violations, and that, by denying him access to the Court, his right to freedom from discrimination on the basis of his national origin has been violated.

36. Concerning the alleged violation of Article 7 of the Charter (right to a fair hearing), the Applicant maintains that, by limiting access to the Court to the making of a declaration by Member States of the Respondent, his right to have complaints of human rights violations heard and determined by the Court has been violated.

37. Regarding the alleged violation of Article13(3) of the Charter (the right of access to public property and services in strict equality of all persons before the law), the Applicant states that, it is not in dispute that the Court is a public property to which every individual shall have the right of access in strict equality of all persons. He therefore submits that by denying access to the Court to persons whose countries of origin have not made a declaration to accept the competence of the Court, his right to access a public property in strict equality of all persons before the law has been violated without any legal justification.

38. With respect to the alleged violation of Article 26 of the Charter (duty of State Parties to guarantee the independence of the Courts), the Applicant avers that by basing the jurisdiction of the Court on the Respondent's Member States' discretion to accept such jurisdiction, the Respondent has compromised the Court's independence.

39. With regard to the alleged violation of Article 66 of the Charter (the power to adopt special protocols or agreements to supplement the provisions of the Charter), the Applicant states that, in supplementing the provisions of the Charter, any protocol, like the Protocol on the Court, can only enhance the rights guaranteed in the Charter, and that any provision of a supplementary protocol which derogates from the provisions of the Charter shall be declared null and void by the Court.

40. In conclusion; In his prayer in the Application, the Applicant asks for:



"a. A declaration that Article 34(6) of the Protocol on the Establishment of the African Court is illegal, null and void as it is inconsistent with Article 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights.


b. A declaration that the Applicant is entitled to file human rights complaints before the African Court by virtue of Article 7 of the African Charter on Human and Peoples' Rights.

c. An order annulling Article 34(6) of the Protocol on the Establishment of the African Court forthwith."

In his Reply to the Respondent's response, the Applicant concludes as follows:

"15. In the light of the foregoing, the Applicant avers that the Respondent has no reply to the Applicant's claim. The reliefs sought by him ought to be granted by this Honourable Court.

16. In view of this Reply the Applicant avers that the Respondent has no defence whatsoever to the claim of the Applicant."

In his oral submissions, the Applicant prays the Court:

"... to hold that this case is well founded; it is properly constituted and therefore to grant the relief sought by the Applicant, by annulling Article 34(6) of the Protocol so that all victims of human rights violations in the African continent can access this Court in the interest of justice and fair play."

41. In general terms, the Respondent avers that the Application, and each and every allegation thereof, fails to state a claim against the Respondent, either in law or in fact, upon which any relief may be granted.

42. With regard to the jurisdiction of the Court, the Respondent denies that the Protocol as well as the Charter and the Constitutive Act of the African Union were adopted by the African Union and submits that these instruments were adopted by Member States of the African Union as is evident from their preambles. He adds that according to Article 63(1) of the Charter and Article 34(1) of the Protocol, the two instruments are open to signature, ratification or accession by African States only.

43. The Respondent states that, in Article 34(6), the Protocol talks about a State and therefore submits that the African Union not being a State cannot ratify the Protocol and that the Protocol cannot be interpreted in a manner which calls in a corporate entity to assume obligations on behalf of the State.

44. The Respondent maintains that it is not a party to the Charter, nor to the Protocol and that therefore, no case can be brought against it for obligations of Member States under the Charter and the Protocol, in its corporate capacity.

45. The Respondent contends that, in the case at hand, ratification of treaties by Member States of the African Union has never been ceded to the African Union by its Member States; that the African Union cannot be held liable for failure by the Member States to ratify them, or failure to make the requisite declaration.



The Court composed of: Gerard NIYUNGEKO, President; Sophia A.B. AKUFFO, Vice- President; Jean MUTSINZI, Bernard M. NGOEPE, Modibo T.GUINDO, Fatsah OUGUERGOUZ, Augustino Si. RAMADHANI, Duncan TAMBALA, Elsie N. THOMPSON and Sylvain ORE- Judges; and Robert ENO - Registrar


In the matter of:

Femi Falana Esq.,
appearing in person
v.

The African Union,
represented by


Mr. Ben KIOKO, Legal Counsel of the African Union Commission Mr, Bright MANDO, Legal Officer, Office of The Legal Counsel of the African Union Commission Advocate Bahame Mukirya Tom NYANDUGA

After deliberation,
delivers the following majority judgment:

46. In addition, the Respondent avers that the Applicant has not shown any traceable causal connection whatsoever between the African Union and his lack of access to the Court. Therefore, the Respondent submits that there is no case or controversy between the Applicant and the Respondent to be decided by the Court.

47. Finally, the Respondent maintains that the Applicant is not entitled to submit cases to the Court both under the Protocol and the Rules and urges the Court to determine as a preliminary issue, whether the Court can exercise jurisdiction ratione personae and ratione materiae with respect to the Application.

48. With regard to the admissibility of the Application, the Respondent contends that even if the Applicant had a right of access to the Court, which he does not have, he should have exhausted the local remedies in Nigeria, as required by Article 6(2) of the Protocol, Article 56 of the Charter and Rule 40(5) of the Rules, which he has not done.

49. With regard to the merits of the case, that is, the issue of inconsistency of Article 34(6) of the Protocol with some provisions of the Charter, the Respondent states in general terms that it is the sovereign right of its Member States to make a declaration at the time of ratification of the Protocol; that the Protocol is valid in all respects under the 1969 Vienna Convention on the Law of Treaties and under customary international law and can only be void if there is a conflict with a peremptory norm of general international law (jus cogens); and that as a consequence, the Respondent denies that Article 34(6) of the Protocol is illegal or invalid.

50. Concerning the alleged violation of Article 1 of the Charter, the Respondent avers that it has no obligations under this Article which is exclusively for Member States to recognize the rights, duties and freedoms enshrined in the Charter and to adopt legislative or other measures to give them effect.

51. Regarding the alleged violation of Article 7 of the Charter, the Respondent submits that this Article does not in any way offer the Applicant unrestricted access to the Court, as alleged, or at all.

52. Concerning the alleged violation of Article 13 of the Charter, the Respondent contends that this Article is on the Applicant's participation in the government of his country, the Applicant's right of equal access to the public service in his country and the right to access to public property and services and it has nothing to do with the obligations of the African Union or access to the Court.

53. On the alleged violation of Article 26 of the Charter, the Respondent avers again that it is not a State Party to the Charter.

54. Finally, with regard to the alleged violation of Article 66 of the Charter, the Respondent submits that this Article applies only to State Parties to the Charter and not to the Respondent. In conclusion;

55. In its response "the Respondent prays the Court to dismiss the Applicant's Application in its entirety."
In its oral submissions, the Respondent urges "the Court to determine as a preliminary issue whether the Court can exercise jurisdiction ratione personae and ratione materiae under the application", "prays that the Application should be dismissed for lack of jurisdiction" and, "denies that Article 1, 2, 7, 13, 26 and 66 of the Charter have been violated and therefore prays that the Application be dismissed."

56. At this stage, the Court has, in accordance with Rules 39(1) and 52(7) of the Rules, to consider the preliminary objections raised by the Respondent and in particular the objection relating to the Court's jurisdiction over the present Application.

57. Article 3(2) of the Protocol and Rule 26(2) of the Rules provide that "in the event of a dispute as to whether the Court has jurisdiction, the Court shall decide."

58. In order to determine the preliminary objection, it has to be noted that, for the Court to hear an application brought directly by an individual there must be compliance with,inter alia,Article 5(3) and Article 34(6) of the Protocol.

59. Article 5(3) of the Protocol provides that: "The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with Article 34(6) of this Protocol."

60. For its part, Article 34(6) of the Protocol provides that: "At the time of ratification of this Protocol or anytime thereafter, the state shall make a declaration accepting the competence of the Court to receive cases under Article 5(3) of this Protocol. The Court shall not receive any petition under Article 5(3) involving a State Party which has not made such a declaration."

61. As the Court stated in Michelot Yogogombaye v The Republic of Senegal, Application No 001/2008, paragraph 34, "[t]he effect of the foregoing two provisions, read together, is that direct access to the Court by an individual is subject to the deposit by the Respondent State of a declaration authorizing such a case to be brought before the Court."

62. As mentioned earlier, the Applicant submits first that the requirement of the declaration provided for in Article 34(6) of the Protocol applies only to Member States and not to the African Union itself. He concludes that since the Article does not require the Respondent or any of its institutions to make a declaration to accept the jurisdiction of the Court, the Court is competent to entertain his Application. For its part, the Respondent does not specifically address this argument.

63. In the view of the Court, the fact that a non-state entity like the African Union is not required by Article 34(6) of the Protocol to make the declaration does not necessarily give the Court jurisdiction to accept applications brought by individuals against such entity; there may be other grounds on which the Court may find that it has no jurisdiction. In the present instance, what is specifically envisaged by the Protocol and by Article 34(6) in particular is precisely the situation where applications from individuals and NGOs are brought against State Parties. In this regard, Article 3(1) of the Protocol which deals with the jurisdiction of the Court is referring to interpretation and application of human rights instruments ratified by the "States concerned." Similarly, Article 34(6) of the Protocol itself refers only to a "State Party".

64. Secondly, the Applicant submits that the African Union can be sued before the Court because it was the one which enacted and adopted the Protocol, as a corporate community on behalf of its Member States.

65. On its part, as mentioned earlier, the Respondent submits :

- That the Protocol was not adopted by the African Union as such, but by its Member States, as evidenced in the preamble to the Protocol.

- That the Respondent is not a party to the Protocol and that the Protocol in Article 34(6) talks about a State, and the African Union not being a state, cannot ratify the Protocol.

- That the ratification of treaties by Member States of the African Union has never been ceded to the African Union by its Member States and that the African Union cannot be held liable for failure by the Member States to ratify the Protocol or to make the requisite declaration, and therefore, no case can be brought against it for obligations of Member States under the Charter and the Protocol in its corporate capacity.

- That the African Union cannot assume obligations of sovereign Member States which have sovereign rights when ratifying the Protocol and making the declaration.

66. Concerning the Applicant's submission that the African Union can be sued before the Court, because it was the one which enacted and adopted the Protocol, the Court notes that the Protocol was adopted by the Assembly of Heads of State and Government of the African Union.


The Court also notes however that the Protocol was agreed upon by the Member States of the African Union as is evidenced by the preamble of the Protocol which states as follows:


"The Member States of the Organization of African Unity ... State Parties to the African Charter on Human and Peoples' Rights Have agreed as follows:"

67. In the practice of the African Union, although the adoption of treaties is done formally by the Assembly of Heads of State and Government, their signature and ratification are still the exclusive prerogative of its Member States. This is confirmed, inter alia, by Article 34 (1) of the Protocol which provides that “it shall be open for signature and ratification or accession by any State Party to the Charter” (see also Article 63(1) of the Charter). Thus, in the view of the Court, the mere fact that the Protocol has been adopted by the Assembly of Heads of State and Government does not establish that the African Union is a party to the Protocol and therefore can be sued under it.

68. Regarding the Applicant's contention that the African Union can be sued as a corporate community on behalf of its Member States, it is the view of the Court that, as an international organization, the African Union has a legal personality separate from the legal personality of its Member States. As the International Court of Justice stated in its Advisory Opinion on Reparation for injuries suffered in the service of the United Nations:

"It must be acknowledged that its Members [United Nations], by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.


Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. What it does mean is that it is a subject of international law and capable of possessing international rights and duties ... ."¹

69. In this regard, however, in principle, international obligations arising from a treaty cannot be imposed on an international organization, unless it is a party to such a treaty or it is subject to such obligations by any other means recognized under international law.

70. In the present case, the African Union is not a party to the Protocol, As a legal person, an international organization like the African Union will have the capacity to be party to a treaty between States if such a treaty allows an international organization to become a party. As far as an international organization is not a party to a treaty, it cannot be subject to legal obligations arising from that treaty. This is in line with Article 34 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations which provides:

"A treaty does not create either obligations or rights for a third State or a third organization without the consent of that State or that organization." (see also, Article 34

General rule regarding third States
A treaty does not create either obligations or rights for a third State without its consent.

of the 1969 Vienna Convention on the Law of Treaties).

71. Therefore, in the present case, the African Union cannot be subject to obligations arising from the Protocol unless it has been allowed to become a party to the Protocol and it is willing to do so, both of which do not apply. In the same vein, the mere fact that the African Union has a separate legal personality does not imply that it can be considered as a representative of its Member States with regard to obligations that they undertake under the Protocol.

72. It is therefore the opinion of the Court that the African Union cannot be sued before the Court on behalf of its Member States.

73. At this juncture, it is appropriate to emphasize that the Court is a creature of the Protocol and that its jurisdiction is clearly prescribed by the Protocol. When an application is filed before the Court by an individual, the jurisdiction of the Court ratione personae is determined by Articles 5(3) and 34(6) of the Protocol, read together, which require that such an application will not be received unless it is filed against a State which has ratified the Protocol and made the declaration. The present case in which the Application has been filed against an entity other than a State having ratified the Protocol and made the declaration, falls outside the jurisdiction of the Court. Therefore, the Court has no jurisdiction to entertain the Application.

74. Since the Court has concluded that it does not have jurisdiction to hear the Application, it does not deem it necessary to examine the question of admissibility of the Application and the merits of the case.

75. In view of the foregoing,


THE COURT by a majority of seven votes to three:

Holds that in terms ofArticles 5(3) and Article 34(6) of the Protocol, read together, it has no jurisdiction to hear the case instituted by Femi Falana, Esq. against the African Union.

IN FAVOUR: President NIYUNGEKO; Judges MUTSINZI, GUINDO, OUGUERGOUZ, RAMADHANI, TAMBALA and ORE

AGAINST: Vice-President AKUFFO; Judges NGOEPE and THOMPSON

In accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules of Court, the separate opinions of Judges MUTSINZI and OUGUERGOUZ and the dissenting opinion of Vice-President AKUFFO and Judges NGOEPE and THOMPSON, are appended to this Judgment.

Signed
- Gerard NIYUNGEKO, President - Sophia A.B. AKUFFO, Vice-President - Jean MUTSINZI, Judge - Bernard M. NGOE, Judge -Modibo T. GUINDO, Judge -Fatsah OUGUERGOUZ, Judge -Augustino S.L. RAMADHANI, Judge -Duncan TAMBALA, Judge -Elsie N. THOMPSON, Judge -Sylvain ORE, Judge - and Robert ENO, Registrar


Done at Arusha, this twenty-sixth day of June in the year Two Thousand and Twelve in English and French, the English text being authoritative.